EN BANC

G.R. No. 138570               October 10, 2000

BAYAN (Bagong Alyansang Makabayan), a JUNK VFA MOVEMENT, BISHOP TOMAS

MILLAMENA (Iglesia Filipina Independiente), BISHOP ELMER BOLOCAN (United Church of
Christ of the Phil.), DR. REYNALDO LEGASCA, MD, KILUSANG MAMBUBUKID NG PILIPINAS,
KILUSANG MAYO UNO, GABRIELA, PROLABOR, and the PUBLIC INTEREST LAW
CENTER, petitioners, 
vs.
EXECUTIVE SECRETARY RONALDO ZAMORA, FOREIGN AFFAIRS SECRETARY DOMINGO
SIAZON, DEFENSE SECRETARY ORLANDO MERCADO, BRIG. GEN. ALEXANDER AGUIRRE,
SENATE PRESIDENT MARCELO FERNAN, SENATOR FRANKLIN DRILON, SENATOR BLAS
OPLE, SENATOR RODOLFO BIAZON, and SENATOR FRANCISCO TATAD, respondents.

x-----------------------x

G.R. No. 138572               October 10, 2000

PHILIPPINE CONSTITUTION ASSOCIATION, INC.(PHILCONSA), EXEQUIEL B. GARCIA,

AMADOGAT INCIONG, CAMILO L. SABIO, AND RAMON A. GONZALES, petitioners, 
vs.
HON. RONALDO B. ZAMORA, as Executive Secretary, HON. ORLANDO MERCADO, as
Secretary of National Defense, and HON. DOMINGO L. SIAZON, JR., as Secretary of Foreign
Affairs, respondents.

x-----------------------x

G.R. No. 138587               October 10, 2000

TEOFISTO T. GUINGONA, JR., RAUL S. ROCO, and SERGIO R. OSMEÑA III, petitioners, 

vs.
JOSEPH E. ESTRADA, RONALDO B. ZAMORA, DOMINGO L. SIAZON, JR., ORLANDO B.
MERCADO, MARCELO B. FERNAN, FRANKLIN M. DRILON, BLAS F. OPLE and RODOLFO G.
BIAZON, respondents.

x-----------------------x

G.R. No. 138680               October 10, 2000

INTEGRATED BAR OF THE PHILIPPINES, Represented by its National President, Jose Aguila
Grapilon, petitioners, 
vs.
JOSEPH EJERCITO ESTRADA, in his capacity as President, Republic of the Philippines, and
HON. DOMINGO SIAZON, in his capacity as Secretary of Foreign Affairs, respondents.

x-----------------------x

G.R. No. 138698               October 10, 2000

JOVITO R. SALONGA, WIGBERTO TAÑADA, ZENAIDA QUEZON-AVENCEÑA, ROLANDO

SIMBULAN, PABLITO V. SANIDAD, MA. SOCORRO I. DIOKNO, AGAPITO A. AQUINO, JOKER
P. ARROYO, FRANCISCO C. RIVERA JR., RENE A.V. SAGUISAG, KILOSBAYAN, MOVEMENT
OF ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC.
(MABINI), petitioners, 
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF FOREIGN AFFAIRS, THE SECRETARY
OF NATIONAL DEFENSE, SENATE PRESIDENT MARCELO B. FERNAN, SENATOR BLAS F.
OPLE, SENATOR RODOLFO G. BIAZON, AND ALL OTHER PERSONS ACTING THEIR
CONTROL, SUPERVISION, DIRECTION, AND INSTRUCTION IN RELATION TO THE VISITING
FORCES AGREEMENT (VFA), respondents.

DECISION

BUENA, J.:

Confronting the Court for resolution in the instant consolidated petitions for certiorari and prohibition
are issues relating to, and borne by, an agreement forged in the turn of the last century between the
Republic of the Philippines and the United States of America -the Visiting Forces Agreement.

The antecedents unfold.

On March 14, 1947, the Philippines and the United States of America forged a Military Bases
Agreement which formalized, among others, the use of installations in the Philippine territory by
United States military personnel. To further strengthen their defense and security relationship, the
Philippines and the United States entered into a Mutual Defense Treaty on August 30, 1951. Under
the treaty, the parties agreed to respond to any external armed attack on their territory, armed
forces, public vessels, and aircraft.
1

In view of the impending expiration of the RP-US Military Bases Agreement in 1991, the Philippines
and the United States negotiated for a possible extension of the military bases agreement. On
September 16, 1991, the Philippine Senate rejected the proposed RP-US Treaty of Friendship,
Cooperation and Security which, in effect, would have extended the presence of US military bases in
the Philippines. With the expiration of the RP-US Military Bases Agreement, the periodic military
2 

exercises conducted between the two countries were held in abeyance. Notwithstanding, the
defense and security relationship between the Philippines and the United States of America
continued pursuant to the Mutual Defense Treaty.

On July 18, 1997, the United States panel, headed by US Defense Deputy Assistant Secretary for
Asia Pacific Kurt Campbell, met with the Philippine panel, headed by Foreign Affairs Undersecretary
Rodolfo Severino Jr., to exchange notes on "the complementing strategic interests of the United
States and the Philippines in the Asia-Pacific region." Both sides discussed, among other things, the
possible elements of the Visiting Forces Agreement (VFA for brevity). Negotiations by both panels
on the VFA led to a consolidated draft text, which in turn resulted to a final series of conferences and
negotiations that culminated in Manila on January 12 and 13, 1998. Thereafter, then President Fidel
3 

V. Ramos approved the VFA, which was respectively signed by public respondent Secretary Siazon
and Unites States Ambassador Thomas Hubbard on February 10, 1998.

On October 5, 1998, President Joseph E. Estrada, through respondent Secretary of Foreign Affairs,
ratified the VFA. 4

On October 6, 1998, the President, acting through respondent Executive Secretary Ronaldo
Zamora, officially transmitted to the Senate of the Philippines, the Instrument of Ratification, the
5 

letter of the President and the VFA, for concurrence pursuant to Section 21, Article VII of the 1987
6 

Constitution. The Senate, in turn, referred the VFA to its Committee on Foreign Relations, chaired by
Senator Blas F. Ople, and its Committee on National Defense and Security, chaired by Senator
Rodolfo G. Biazon, for their joint consideration and recommendation. Thereafter, joint public
hearings were held by the two Committees. 7

On May 3, 1999, the Committees submitted Proposed Senate Resolution No. 443 recommending
8 

the concurrence of the Senate to the VFA and the creation of a Legislative Oversight Committee to
oversee its implementation. Debates then ensued.

On May 27, 1999, Proposed Senate Resolution No. 443 was approved by the Senate, by a two-
thirds (2/3) vote of its members. Senate Resolution No. 443 was then re-numbered as Senate
9 

Resolution No. 18. 10

On June 1, 1999, the VFA officially entered into force after an Exchange of Notes between
respondent Secretary Siazon and United States Ambassador Hubbard.

The VFA, which consists of a Preamble and nine (9) Articles, provides for the mechanism for
regulating the circumstances and conditions under which US Armed Forces and defense personnel
may be present in the Philippines, and is quoted in its full text, hereunder:

"Article I
Definitions

"As used in this Agreement, ‘United States personnel’ means United States military and civilian
personnel temporarily in the Philippines in connection with activities approved by the Philippine
Government.

"Within this definition:

"1. The term ‘military personnel’ refers to military members of the United States Army, Navy,
Marine Corps, Air Force, and Coast Guard.

"2. The term ‘civilian personnel’ refers to individuals who are neither nationals of, nor
ordinary residents in the Philippines and who are employed by the United States armed
forces or who are accompanying the United States armed forces, such as employees of the
American Red Cross and the United Services Organization.

"Article II
Respect for Law
"It is the duty of the United States personnel to respect the laws of the Republic of the Philippines
and to abstain from any activity inconsistent with the spirit of this agreement, and, in particular, from
any political activity in the Philippines. The Government of the United States shall take all measures
within its authority to ensure that this is done.

"Article III
Entry and Departure

"1. The Government of the Philippines shall facilitate the admission of United States
personnel and their departure from the Philippines in connection with activities covered by
this agreement.

"2. United States military personnel shall be exempt from passport and visa regulations upon
entering and departing the Philippines.

"3. The following documents only, which shall be presented on demand, shall be required in
respect of United States military personnel who enter the Philippines:

"(a) personal identity card issued by the appropriate United States authority showing
full name, date of birth, rank or grade and service number (if any), branch of service
and photograph;

"(b) individual or collective document issued by the appropriate United States

authority, authorizing the travel or visit and identifying the individual or group as
United States military personnel; and

"(c) the commanding officer of a military aircraft or vessel shall present a declaration
of health, and when required by the cognizant representative of the Government of
the Philippines, shall conduct a quarantine inspection and will certify that the aircraft
or vessel is free from quarantinable diseases. Any quarantine inspection of United
States aircraft or United States vessels or cargoes thereon shall be conducted by the
United States commanding officer in accordance with the international health
regulations as promulgated by the World Health Organization, and mutually agreed
procedures.

"4. United States civilian personnel shall be exempt from visa requirements but shall present,
upon demand, valid passports upon entry and departure of the Philippines.

"5. If the Government of the Philippines has requested the removal of any United States
personnel from its territory, the United States authorities shall be responsible for receiving
the person concerned within its own territory or otherwise disposing of said person outside of
the Philippines.

"Article IV

Driving and Vehicle Registration

"1. Philippine authorities shall accept as valid, without test or fee, a driving permit or license
issued by the appropriate United States authority to United States personnel for the
operation of military or official vehicles.
 "2. Vehicles owned by the Government of the United States need not be registered, but shall
have appropriate markings.

"Article V
Criminal Jurisdiction

"1. Subject to the provisions of this article:

(a) Philippine authorities shall have jurisdiction over United States personnel with respect to
offenses committed within the Philippines and punishable under the law of the Philippines.

(b) United States military authorities shall have the right to exercise within the Philippines all
criminal and disciplinary jurisdiction conferred on them by the military law of the United
States over United States personnel in the Philippines.

"2. (a) Philippine authorities exercise exclusive jurisdiction over United States personnel with respect
to offenses, including offenses relating to the security of the Philippines, punishable under the laws
of the Philippines, but not under the laws of the United States.

(b) United States authorities exercise exclusive jurisdiction over United States personnel with
respect to offenses, including offenses relating to the security of the United States,
punishable under the laws of the United States, but not under the laws of the Philippines.

(c) For the purposes of this paragraph and paragraph 3 of this article, an offense relating to
security means:

(1) treason;

(2) sabotage, espionage or violation of any law relating to national defense.

"3. In cases where the right to exercise jurisdiction is concurrent, the following rules shall apply:

(a) Philippine authorities shall have the primary right to exercise jurisdiction over all offenses
committed by United States personnel, except in cases provided for in paragraphs 1(b), 2
(b), and 3 (b) of this Article.

(b) United States military authorities shall have the primary right to exercise jurisdiction over
United States personnel subject to the military law of the United States in relation to.

(1) offenses solely against the property or security of the United States or offenses
solely against the property or person of United States personnel; and

(2) offenses arising out of any act or omission done in performance of official duty.

(c) The authorities of either government may request the authorities of the other
government to waive their primary right to exercise jurisdiction in a particular case.

(d) Recognizing the responsibility of the United States military authorities to maintain
good order and discipline among their forces, Philippine authorities will, upon request
by the United States, waive their primary right to exercise jurisdiction except in cases
of particular importance to the Philippines. If the Government of the Philippines
 determines that the case is of particular importance, it shall communicate such
determination to the United States authorities within twenty (20) days after the
Philippine authorities receive the United States request.

(e) When the United States military commander determines that an offense charged
by authorities of the Philippines against United states personnel arises out of an act
or omission done in the performance of official duty, the commander will issue a
certificate setting forth such determination. This certificate will be transmitted to the
appropriate authorities of the Philippines and will constitute sufficient proof of
performance of official duty for the purposes of paragraph 3(b)(2) of this Article. In
those cases where the Government of the Philippines believes the circumstances of
the case require a review of the duty certificate, United States military authorities and
Philippine authorities shall consult immediately. Philippine authorities at the highest
levels may also present any information bearing on its validity. United States military
authorities shall take full account of the Philippine position. Where appropriate,
United States military authorities will take disciplinary or other action against
offenders in official duty cases, and notify the Government of the Philippines of the
actions taken.

(f) If the government having the primary right does not exercise jurisdiction, it shall
notify the authorities of the other government as soon as possible.

(g) The authorities of the Philippines and the United States shall notify each other of
the disposition of all cases in which both the authorities of the Philippines and the
United States have the right to exercise jurisdiction.

"4. Within the scope of their legal competence, the authorities of the Philippines and United States
shall assist each other in the arrest of United States personnel in the Philippines and in handling
them over to authorities who are to exercise jurisdiction in accordance with the provisions of this
article.

"5. United States military authorities shall promptly notify Philippine authorities of the arrest or
detention of United States personnel who are subject of Philippine primary or exclusive jurisdiction.
Philippine authorities shall promptly notify United States military authorities of the arrest or detention
of any United States personnel.

"6. The custody of any United States personnel over whom the Philippines is to exercise jurisdiction
shall immediately reside with United States military authorities, if they so request, from the
commission of the offense until completion of all judicial proceedings. United States military
authorities shall, upon formal notification by the Philippine authorities and without delay, make such
personnel available to those authorities in time for any investigative or judicial proceedings relating
to the offense with which the person has been charged in extraordinary cases, the Philippine
Government shall present its position to the United States Government regarding custody, which the
United States Government shall take into full account. In the event Philippine judicial proceedings
are not completed within one year, the United States shall be relieved of any obligations under this
paragraph. The one-year period will not include the time necessary to appeal. Also, the one-year
period will not include any time during which scheduled trial procedures are delayed because United
States authorities, after timely notification by Philippine authorities to arrange for the presence of the
accused, fail to do so.

"7. Within the scope of their legal authority, United States and Philippine authorities shall assist each
other in the carrying out of all necessary investigation into offenses and shall cooperate in providing
for the attendance of witnesses and in the collection and production of evidence, including seizure
and, in proper cases, the delivery of objects connected with an offense.

"8. When United States personnel have been tried in accordance with the provisions of this Article
and have been acquitted or have been convicted and are serving, or have served their sentence, or
have had their sentence remitted or suspended, or have been pardoned, they may not be tried again
for the same offense in the Philippines. Nothing in this paragraph, however, shall prevent United
States military authorities from trying United States personnel for any violation of rules of discipline
arising from the act or omission which constituted an offense for which they were tried by Philippine
authorities.

"9. When United States personnel are detained, taken into custody, or prosecuted by Philippine
authorities, they shall be accorded all procedural safeguards established by the law of the
Philippines. At the minimum, United States personnel shall be entitled:

(a) To a prompt and speedy trial;

(b) To be informed in advance of trial of the specific charge or charges made against them
and to have reasonable time to prepare a defense;

(c) To be confronted with witnesses against them and to cross examine such witnesses;

(d) To present evidence in their defense and to have compulsory process for obtaining
witnesses;

(e) To have free and assisted legal representation of their own choice on the same basis as
nationals of the Philippines;

(f) To have the service of a competent interpreter; and

(g) To communicate promptly with and to be visited regularly by United States authorities,
and to have such authorities present at all judicial proceedings. These proceedings shall be
public unless the court, in accordance with Philippine laws, excludes persons who have no
role in the proceedings.

"10. The confinement or detention by Philippine authorities of United States personnel shall be
carried out in facilities agreed on by appropriate Philippine and United States authorities. United
States Personnel serving sentences in the Philippines shall have the right to visits and material
assistance.

"11. United States personnel shall be subject to trial only in Philippine courts of ordinary jurisdiction,
and shall not be subject to the jurisdiction of Philippine military or religious courts.

"Article VI
Claims

"1. Except for contractual arrangements, including United States foreign military sales letters
of offer and acceptance and leases of military equipment, both governments waive any and
all claims against each other for damage, loss or destruction to property of each other’s
armed forces or for death or injury to their military and civilian personnel arising from
activities to which this agreement applies.
"2. For claims against the United States, other than contractual claims and those to which
paragraph 1 applies, the United States Government, in accordance with United States law
regarding foreign claims, will pay just and reasonable compensation in settlement of
meritorious claims for damage, loss, personal injury or death, caused by acts or omissions of
United States personnel, or otherwise incident to the non-combat activities of the United
States forces.

"Article VII
Importation and Exportation

"1. United States Government equipment, materials, supplies, and other property imported
into or acquired in the Philippines by or on behalf of the United States armed forces in
connection with activities to which this agreement applies, shall be free of all Philippine
duties, taxes and other similar charges. Title to such property shall remain with the United
States, which may remove such property from the Philippines at any time, free from export
duties, taxes, and other similar charges. The exemptions provided in this paragraph shall
also extend to any duty, tax, or other similar charges which would otherwise be assessed
upon such property after importation into, or acquisition within, the Philippines. Such property
may be removed from the Philippines, or disposed of therein, provided that disposition of
such property in the Philippines to persons or entities not entitled to exemption from
applicable taxes and duties shall be subject to payment of such taxes, and duties and prior
approval of the Philippine Government.

"2. Reasonable quantities of personal baggage, personal effects, and other property for the
personal use of United States personnel may be imported into and used in the Philippines
free of all duties, taxes and other similar charges during the period of their temporary stay in
the Philippines. Transfers to persons or entities in the Philippines not entitled to import
privileges may only be made upon prior approval of the appropriate Philippine authorities
including payment by the recipient of applicable duties and taxes imposed in accordance
with the laws of the Philippines. The exportation of such property and of property acquired in
the Philippines by United States personnel shall be free of all Philippine duties, taxes, and
other similar charges.

"Article VIII
Movement of Vessels and Aircraft

"1. Aircraft operated by or for the United States armed forces may enter the Philippines upon
approval of the Government of the Philippines in accordance with procedures stipulated in
implementing arrangements.

"2. Vessels operated by or for the United States armed forces may enter the Philippines
upon approval of the Government of the Philippines. The movement of vessels shall be in
accordance with international custom and practice governing such vessels, and such agreed
implementing arrangements as necessary.

"3. Vehicles, vessels, and aircraft operated by or for the United States armed forces shall not
be subject to the payment of landing or port fees, navigation or over flight charges, or tolls or
other use charges, including light and harbor dues, while in the Philippines. Aircraft operated
by or for the United States armed forces shall observe local air traffic control regulations
while in the Philippines. Vessels owned or operated by the United States solely on United
States Government non-commercial service shall not be subject to compulsory pilotage at
Philippine ports.
 "Article IX
Duration and Termination

"This agreement shall enter into force on the date on which the parties have notified each other in
writing through the diplomatic channel that they have completed their constitutional requirements for
entry into force. This agreement shall remain in force until the expiration of 180 days from the date
on which either party gives the other party notice in writing that it desires to terminate the
agreement."

Via these consolidated petitions for certiorari and prohibition, petitioners - as legislators, non-
11 

governmental organizations, citizens and taxpayers - assail the constitutionality of the VFA and
impute to herein respondents grave abuse of discretion in ratifying the agreement.

We have simplified the issues raised by the petitioners into the following:

Do petitioners have legal standing as concerned citizens, taxpayers, or legislators to question the
constitutionality of the VFA?

II

Is the VFA governed by the provisions of Section 21, Article VII or of Section 25, Article XVIII of the
Constitution?

III

Does the VFA constitute an abdication of Philippine sovereignty?

a. Are Philippine courts deprived of their jurisdiction to hear and try offenses committed by
US military personnel?

b. Is the Supreme Court deprived of its jurisdiction over offenses punishable by reclusion
perpetua or higher?

IV

Does the VFA violate:

a. the equal protection clause under Section 1, Article III of the Constitution?

b. the Prohibition against nuclear weapons under Article II, Section 8?

c. Section 28 (4), Article VI of the Constitution granting the exemption from taxes and duties
for the equipment, materials supplies and other properties imported into or acquired in the
Philippines by, or on behalf, of the US Armed Forces?

LOCUS STANDI
At the outset, respondents challenge petitioner’s standing to sue, on the ground that the latter have
not shown any interest in the case, and that petitioners failed to substantiate that they have
sustained, or will sustain direct injury as a result of the operation of the VFA. Petitioners, on the
12 

other hand, counter that the validity or invalidity of the VFA is a matter of transcendental importance
which justifies their standing. 13

A party bringing a suit challenging the constitutionality of a law, act, or statute must show "not only
that the law is invalid, but also that he has sustained or in is in immediate, or imminent danger of
sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in
some indefinite way." He must show that he has been, or is about to be, denied some right or
privilege to which he is lawfully entitled, or that he is about to be subjected to some burdens or
penalties by reason of the statute complained of. 14

In the case before us, petitioners failed to show, to the satisfaction of this Court, that they have
sustained, or are in danger of sustaining any direct injury as a result of the enforcement of the VFA.
As taxpayers, petitioners have not established that the VFA involves the exercise by Congress of its
taxing or spending powers. On this point, it bears stressing that a taxpayer’s suit refers to a case
15 

where the act complained of directly involves the illegal disbursement of public funds derived from
taxation. Thus, in Bugnay Const. & Development Corp. vs. Laron , we held:
16  17 

"x x x it is exigent that the taxpayer-plaintiff sufficiently show that he would be benefited or injured by
the judgment or entitled to the avails of the suit as a real party in interest. Before he can invoke the
power of judicial review, he must specifically prove that he has sufficient interest in preventing the
illegal expenditure of money raised by taxation and that he will sustain a direct injury as a result of
the enforcement of the questioned statute or contract. It is not sufficient that he has merely a general
interest common to all members of the public."

Clearly, inasmuch as no public funds raised by taxation are involved in this case, and in the absence
of any allegation by petitioners that public funds are being misspent or illegally expended,
petitioners, as taxpayers, have no legal standing to assail the legality of the VFA.

Similarly, Representatives Wigberto Tañada, Agapito Aquino and Joker Arroyo, as petitioners-
legislators, do not possess the requisite locus standi to maintain the present suit. While this Court,
in Phil. Constitution Association vs. Hon. Salvador Enriquez, sustained the legal standing of a
18 

member of the Senate and the House of Representatives to question the validity of a presidential
veto or a condition imposed on an item in an appropriation bull, we cannot, at this instance, similarly
uphold petitioners’ standing as members of Congress, in the absence of a clear showing of any
direct injury to their person or to the institution to which they belong.

Beyond this, the allegations of impairment of legislative power, such as the delegation of the power
of Congress to grant tax exemptions, are more apparent than real. While it may be true that
petitioners pointed to provisions of the VFA which allegedly impair their legislative powers,
petitioners failed however to sufficiently show that they have in fact suffered direct injury.

In the same vein, petitioner Integrated Bar of the Philippines (IBP) is stripped of standing in these
cases. As aptly observed by the Solicitor General, the IBP lacks the legal capacity to bring this suit in
the absence of a board resolution from its Board of Governors authorizing its National President to
commence the present action. 19

Notwithstanding, in view of the paramount importance and the constitutional significance of the
issues raised in the petitions, this Court, in the exercise of its sound discretion, brushes aside the
procedural barrier and takes cognizance of the petitions, as we have done in the early Emergency
Powers Cases, where we had occasion to rule:
20 

"x x x ordinary citizens and taxpayers were allowed to question the constitutionality of several
executive orders issued by President Quirino although they were involving only an indirect and
general interest shared in common with the public. The Court dismissed the objection that they were
not proper parties and ruled that ‘transcendental importance to the public of these cases
demands that they be settled promptly and definitely, brushing aside, if we must,
technicalities of procedure.’ We have since then applied the exception in many other cases.
(Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian Reform, 175 SCRA
343)." (Underscoring Supplied)

This principle was reiterated in the subsequent cases of Gonzales vs. COMELEC, Daza vs.
21 

Singson, and Basco vs. Phil. Amusement and Gaming Corporation, where we emphatically
22  23 

held:

"Considering however the importance to the public of the case at bar, and in keeping with the Court’s
duty, under the 1987 Constitution, to determine whether or not the other branches of the government
have kept themselves within the limits of the Constitution and the laws and that they have not
abused the discretion given to them, the Court has brushed aside technicalities of procedure and
has taken cognizance of this petition. x x x"

Again, in the more recent case of Kilosbayan vs. Guingona, Jr., thisCourt ruled that in cases of
24 

transcendental importance, the Court may relax the standing requirements and allow a suit to
prosper even where there is no direct injury to the party claiming the right of judicial review.

Although courts generally avoid having to decide a constitutional question based on the doctrine of
separation of powers, which enjoins upon the departments of the government a becoming respect
for each others’ acts, this Court nevertheless resolves to take cognizance of the instant petitions.
25 

APPLICABLE CONSTITUTIONAL PROVISION

One focal point of inquiry in this controversy is the determination of which provision of the
Constitution applies, with regard to the exercise by the senate of its constitutional power to concur
with the VFA. Petitioners argue that Section 25, Article XVIII is applicable considering that the VFA
has for its subject the presence of foreign military troops in the Philippines. Respondents, on the
contrary, maintain that Section 21, Article VII should apply inasmuch as the VFA is not a basing
arrangement but an agreement which involves merely the temporary visits of United States
personnel engaged in joint military exercises.

The 1987 Philippine Constitution contains two provisions requiring the concurrence of the Senate on
treaties or international agreements. Section 21, Article VII, which herein respondents invoke, reads:

"No treaty or international agreement shall be valid and effective unless concurred in by at least two-
thirds of all the Members of the Senate."

Section 25, Article XVIII, provides:

"After the expiration in 1991 of the Agreement between the Republic of the Philippines and the
United States of America concerning Military Bases, foreign military bases, troops, or facilities shall
not be allowed in the Philippines except under a treaty duly concurred in by the senate and, when
the Congress so requires, ratified by a majority of the votes cast by the people in a national
referendum held for that purpose, and recognized as a treaty by the other contracting State."

Section 21, Article VII deals with treatise or international agreements in general, in which case, the
concurrence of at least two-thirds (2/3) of all the Members of the Senate is required to make the
subject treaty, or international agreement, valid and binding on the part of the Philippines. This
provision lays down the general rule on treatise or international agreements and applies to any form
of treaty with a wide variety of subject matter, such as, but not limited to, extradition or tax treatise or
those economic in nature. All treaties or international agreements entered into by the Philippines,
regardless of subject matter, coverage, or particular designation or appellation, requires the
concurrence of the Senate to be valid and effective.

In contrast, Section 25, Article XVIII is a special provision that applies to treaties which involve the
presence of foreign military bases, troops or facilities in the Philippines. Under this provision, the
concurrence of the Senate is only one of the requisites to render compliance with the constitutional
requirements and to consider the agreement binding on the Philippines. Section 25, Article XVIII
further requires that "foreign military bases, troops, or facilities" may be allowed in the Philippines
only by virtue of a treaty duly concurred in by the Senate, ratified by a majority of the votes cast in a
national referendum held for that purpose if so required by Congress, and recognized as such by the
other contracting state.

It is our considered view that both constitutional provisions, far from contradicting each other,
actually share some common ground. These constitutional provisions both embody phrases in the
negative and thus, are deemed prohibitory in mandate and character. In particular, Section 21 opens
with the clause "No treaty x x x," and Section 25 contains the phrase "shall not be allowed."
Additionally, in both instances, the concurrence of the Senate is indispensable to render the treaty or
international agreement valid and effective.

To our mind, the fact that the President referred the VFA to the Senate under Section 21, Article VII,
and that the Senate extended its concurrence under the same provision, is immaterial. For in either
case, whether under Section 21, Article VII or Section 25, Article XVIII, the fundamental law is
crystalline that the concurrence of the Senate is mandatory to comply with the strict constitutional
requirements.

On the whole, the VFA is an agreement which defines the treatment of United States troops and
personnel visiting the Philippines. It provides for the guidelines to govern such visits of military
personnel, and further defines the rights of the United States and the Philippine government in the
matter of criminal jurisdiction, movement of vessel and aircraft, importation and exportation of
equipment, materials and supplies.

Undoubtedly, Section 25, Article XVIII, which specifically deals with treaties involving foreign military
bases, troops, or facilities, should apply in the instant case. To a certain extent and in a limited
sense, however, the provisions of section 21, Article VII will find applicability with regard to the issue
and for the sole purpose of determining the number of votes required to obtain the valid concurrence
of the Senate, as will be further discussed hereunder.

It is a finely-imbedded principle in statutory construction that a special provision or law prevails over
a general one. Lex specialis derogat generali. Thus, where there is in the same statute a particular
enactment and also a general one which, in its most comprehensive sense, would include what is
embraced in the former, the particular enactment must be operative, and the general enactment
must be taken to affect only such cases within its general language which are not within the
provision of the particular enactment. 26
In Leveriza vs. Intermediate Appellate Court, we enunciated:
27 

"x x x that another basic principle of statutory construction mandates that general legislation must
give way to a special legislation on the same subject, and generally be so interpreted as to embrace
only cases in which the special provisions are not applicable (Sto. Domingo vs. de los Angeles, 96
SCRA 139), that a specific statute prevails over a general statute (De Jesus vs. People, 120 SCRA
760) and that where two statutes are of equal theoretical application to a particular case, the one
designed therefor specially should prevail (Wil Wilhensen Inc. vs. Baluyot, 83 SCRA 38)."

Moreover, it is specious to argue that Section 25, Article XVIII is inapplicable to mere transient
agreements for the reason that there is no permanent placing of structure for the establishment of a
military base. On this score, the Constitution makes no distinction between "transient’ and
"permanent". Certainly, we find nothing in Section 25, Article XVIII that requires foreign troops or
facilities to be stationed or placed permanently in the Philippines.

It is a rudiment in legal hermenuetics that when no distinction is made by law, the Court should not
distinguish- Ubi lex non distinguit nec nos distinguire debemos.

In like manner, we do not subscribe to the argument that Section 25, Article XVIII is not controlling
since no foreign military bases, but merely foreign troops and facilities, are involved in the VFA.
Notably, a perusal of said constitutional provision reveals that the proscription covers "foreign
military bases, troops, or facilities." Stated differently, this prohibition is not limited to the entry of
troops and facilities without any foreign bases being established. The clause does not refer to
"foreign military bases, troops, or facilities" collectively but treats them as separate and independent
subjects. The use of comma and the disjunctive word "or" clearly signifies disassociation and
independence of one thing from the others included in the enumeration, such that, the provision
28 

contemplates three different situations - a military treaty the subject of which could be either (a)
foreign bases, (b) foreign troops, or (c) foreign facilities - any of the three standing alone places it
under the coverage of Section 25, Article XVIII.

To this end, the intention of the framers of the Charter, as manifested during the deliberations of the
1986 Constitutional Commission, is consistent with this interpretation:

"MR. MAAMBONG. I just want to address a question or two to Commissioner Bernas.

This formulation speaks of three things: foreign military bases, troops or facilities. My first question
is: If the country does enter into such kind of a treaty, must it cover the three-bases, troops or
facilities-or could the treaty entered into cover only one or two?

FR. BERNAS. Definitely, it can cover only one. Whether it covers only one or it covers three,
the requirement will be the same.

MR. MAAMBONG. In other words, the Philippine government can enter into a treaty covering
not bases but merely troops?

FR. BERNAS. Yes.

MR. MAAMBONG. I cannot find any reason why the government can enter into a treaty covering
only troops.
FR. BERNAS. Why not? Probably if we stretch our imagination a little bit more, we will find some.
We just want to cover everything." (Underscoring Supplied)
29 

Moreover, military bases established within the territory of another state is no longer viable because
of the alternatives offered by new means and weapons of warfare such as nuclear weapons, guided
missiles as well as huge sea vessels that can stay afloat in the sea even for months and years
without returning to their home country. These military warships are actually used as substitutes for
a land-home base not only of military aircraft but also of military personnel and facilities. Besides,
vessels are mobile as compared to a land-based military headquarters.

At this juncture, we shall then resolve the issue of whether or not the requirements of Section 25
were complied with when the Senate gave its concurrence to the VFA.

Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country, unless
the following conditions are sufficiently met, viz: (a) it must be under a treaty; (b) the treaty must
be duly concurred in by the Senate and, when so required by congress, ratified by a majority of
the votes cast by the people in a national referendum; and (c) recognized as a treaty by the other
contracting state.

There is no dispute as to the presence of the first two requisites in the case of the VFA. The
concurrence handed by the Senate through Resolution No. 18 is in accordance with the provisions
of the Constitution, whether under the general requirement in Section 21, Article VII, or the specific
mandate mentioned in Section 25, Article XVIII, the provision in the latter article requiring ratification
by a majority of the votes cast in a national referendum being unnecessary since Congress has not
required it.

As to the matter of voting, Section 21, Article VII particularly requires that a treaty or international
agreement, to be valid and effective, must be concurred in by at least two-thirds of all the
members of the Senate. On the other hand, Section 25, Article XVIII simply provides that the treaty
be "duly concurred in by the Senate."

Applying the foregoing constitutional provisions, a two-thirds vote of all the members of the Senate is
clearly required so that the concurrence contemplated by law may be validly obtained and deemed
present. While it is true that Section 25, Article XVIII requires, among other things, that the treaty-the
VFA, in the instant case-be "duly concurred in by the Senate," it is very true however that said
provision must be related and viewed in light of the clear mandate embodied in Section 21, Article
VII, which in more specific terms, requires that the concurrence of a treaty, or international
agreement, be made by a two -thirds vote of all the members of the Senate. Indeed, Section 25,
Article XVIII must not be treated in isolation to section 21, Article, VII.

As noted, the "concurrence requirement" under Section 25, Article XVIII must be construed in
relation to the provisions of Section 21, Article VII. In a more particular language, the concurrence of
the Senate contemplated under Section 25, Article XVIII means that at least two-thirds of all the
members of the Senate favorably vote to concur with the treaty-the VFA in the instant case.

Under these circumstances, the charter provides that the Senate shall be composed of twenty-four
(24) Senators. Without a tinge of doubt, two-thirds (2/3) of this figure, or not less than sixteen (16)
30

members, favorably acting on the proposal is an unquestionable compliance with the requisite
number of votes mentioned in Section 21 of Article VII. The fact that there were actually twenty-three
(23) incumbent Senators at the time the voting was made, will not alter in any significant way the
31 

circumstance that more than two-thirds of the members of the Senate concurred with the proposed
VFA, even if the two-thirds vote requirement is based on this figure of actual members (23). In this
regard, the fundamental law is clear that two-thirds of the 24 Senators, or at least 16 favorable votes,
suffice so as to render compliance with the strict constitutional mandate of giving concurrence to the
subject treaty.

Having resolved that the first two requisites prescribed in Section 25, Article XVIII are present, we
shall now pass upon and delve on the requirement that the VFA should be recognized as a treaty by
the United States of America.

Petitioners content that the phrase "recognized as a treaty," embodied in section 25, Article XVIII,
means that the VFA should have the advice and consent of the United States Senate pursuant to its
own constitutional process, and that it should not be considered merely an executive agreement by
the United States.

In opposition, respondents argue that the letter of United States Ambassador Hubbard stating that
the VFA is binding on the United States Government is conclusive, on the point that the VFA is
recognized as a treaty by the United States of America. According to respondents, the VFA, to be
binding, must only be accepted as a treaty by the United States.

This Court is of the firm view that the phrase "recognized as a treaty" means that the other
contracting party accepts or acknowledges the agreement as a treaty. To require the other
32 

contracting state, the United States of America in this case, to submit the VFA to the United States
Senate for concurrence pursuant to its Constitution, is to accord strict meaning to the phrase.
33 

Well-entrenched is the principle that the words used in the Constitution are to be given their ordinary
meaning except where technical terms are employed, in which case the significance thus attached to
them prevails. Its language should be understood in the sense they have in common use. 34

Moreover, it is inconsequential whether the United States treats the VFA only as an executive
agreement because, under international law, an executive agreement is as binding as a treaty. To 35 

be sure, as long as the VFA possesses the elements of an agreement under international law, the
said agreement is to be taken equally as a treaty.

A treaty, as defined by the Vienna Convention on the Law of Treaties, is "an international instrument
concluded between States in written form and governed by international law, whether embodied in a
single instrument or in two or more related instruments, and whatever its particular
designation." There are many other terms used for a treaty or international agreement, some of
36 

which are: act, protocol, agreement, compromis d’ arbitrage, concordat, convention, declaration,

exchange of notes, pact, statute, charter and modus vivendi. All writers, from Hugo Grotius onward,
have pointed out that the names or titles of international agreements included under the general
term treaty have little or no legal significance. Certain terms are useful, but they furnish little more
than mere description. 37

Article 2(2) of the Vienna Convention provides that "the provisions of paragraph 1 regarding the use
of terms in the present Convention are without prejudice to the use of those terms, or to the
meanings which may be given to them in the internal law of the State."

Thus, in international law, there is no difference between treaties and executive agreements in their
binding effect upon states concerned, as long as the negotiating functionaries have remained within
their powers. International law continues to make no distinction between treaties and executive
38 

agreements: they are equally binding obligations upon nations. 39

In our jurisdiction, we have recognized the binding effect of executive agreements even without the
concurrence of the Senate or Congress. In Commissioner of Customs vs. Eastern Sea
Trading, we had occasion to pronounce:
40 

"x x x the right of the Executive to enter into binding agreements without the necessity of subsequent
congressional approval has been confirmed by long usage. From the earliest days of our history we
have entered into executive agreements covering such subjects as commercial and consular
relations, most-favored-nation rights, patent rights, trademark and copyright protection, postal and
navigation arrangements and the settlement of claims. The validity of these has never been
seriously questioned by our courts.

"x x x x x x x x x

"Furthermore, the United States Supreme Court has expressly recognized the validity and
constitutionality of executive agreements entered into without Senate approval. (39 Columbia Law
Review, pp. 753-754) (See, also, U.S. vs. Curtis Wright Export Corporation, 299 U.S. 304, 81 L.
ed. 255; U.S. vs. Belmont, 301 U.S. 324, 81 L. ed. 1134; U.S. vs. Pink, 315 U.S. 203, 86 L. ed.
796; Ozanic vs. U.S. 188 F. 2d. 288; Yale Law Journal, Vol. 15 pp. 1905-1906; California Law
Review, Vol. 25, pp. 670-675; Hyde on International Law [revised Edition], Vol. 2, pp. 1405,
1416-1418; willoughby on the U.S. Constitution Law, Vol. I [2d ed.], pp. 537-540; Moore,
International Law Digest, Vol. V, pp. 210-218; Hackworth, International Law Digest, Vol. V, pp.
390-407). (Italics Supplied)" (Emphasis Ours)

The deliberations of the Constitutional Commission which drafted the 1987 Constitution is
enlightening and highly-instructive:

"MR. MAAMBONG. Of course it goes without saying that as far as ratification of the other state is
concerned, that is entirely their concern under their own laws.

FR. BERNAS. Yes, but we will accept whatever they say. If they say that we have done everything
to make it a treaty, then as far as we are concerned, we will accept it as a treaty." 41

The records reveal that the United States Government, through Ambassador Thomas C. Hubbard,
has stated that the United States government has fully committed to living up to the terms of the
VFA. For as long as the united States of America accepts or acknowledges the VFA as a treaty, and
42 

binds itself further to comply with its obligations under the treaty, there is indeed marked compliance
with the mandate of the Constitution.

Worth stressing too, is that the ratification, by the President, of the VFA and the concurrence of the
Senate should be taken as a clear an unequivocal expression of our nation’s consent to be bound by
said treaty, with the concomitant duty to uphold the obligations and responsibilities embodied
thereunder.

Ratification is generally held to be an executive act, undertaken by the head of the state or of the
government, as the case may be, through which the formal acceptance of the treaty is
proclaimed. A State may provide in its domestic legislation the process of ratification of a treaty. The
43 

consent of the State to be bound by a treaty is expressed by ratification when: (a) the treaty provides
for such ratification, (b) it is otherwise established that the negotiating States agreed that ratification
should be required, (c) the representative of the State has signed the treaty subject to ratification, or
(d) the intention of the State to sign the treaty subject to ratification appears from the full powers of
its representative, or was expressed during the negotiation. 44
In our jurisdiction, the power to ratify is vested in the President and not, as commonly believed, in
the legislature. The role of the Senate is limited only to giving or withholding its consent, or
concurrence, to the ratification.45

With the ratification of the VFA, which is equivalent to final acceptance, and with the exchange of
notes between the Philippines and the United States of America, it now becomes obligatory and
incumbent on our part, under the principles of international law, to be bound by the terms of the
agreement. Thus, no less than Section 2, Article II of the Constitution, declares that the Philippines
46 

adopts the generally accepted principles of international law as part of the law of the land and
adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations.

As a member of the family of nations, the Philippines agrees to be bound by generally accepted
rules for the conduct of its international relations. While the international obligation devolves upon
the state and not upon any particular branch, institution, or individual member of its government, the
Philippines is nonetheless responsible for violations committed by any branch or subdivision of its
government or any official thereof. As an integral part of the community of nations, we are
responsible to assure that our government, Constitution and laws will carry out our international
obligation. Hence, we cannot readily plead the Constitution as a convenient excuse for non-
47 

compliance with our obligations, duties and responsibilities under international law.

Beyond this, Article 13 of the Declaration of Rights and Duties of States adopted by the International
Law Commission in 1949 provides: "Every State has the duty to carry out in good faith its obligations
arising from treaties and other sources of international law, and it may not invoke provisions in its
constitution or its laws as an excuse for failure to perform this duty."48

Equally important is Article 26 of the convention which provides that "Every treaty in force is binding
upon the parties to it and must be performed by them in good faith." This is known as the principle
of pacta sunt servanda which preserves the sanctity of treaties and have been one of the most
fundamental principles of positive international law, supported by the jurisprudence of international
tribunals.
49

NO GRAVE ABUSE OF DISCRETION

In the instant controversy, the President, in effect, is heavily faulted for exercising a power and
performing a task conferred upon him by the Constitution-the power to enter into and ratify treaties.
Through the expediency of Rule 65 of the Rules of Court, petitioners in these consolidated cases
impute grave abuse of discretion on the part of the chief Executive in ratifying the VFA, and
referring the same to the Senate pursuant to the provisions of Section 21, Article VII of the
Constitution.

On this particular matter, grave abuse of discretion implies such capricious and whimsical exercise
of judgment as is equivalent to lack of jurisdiction, or, when the power is exercised in an arbitrary or
despotic manner by reason of passion or personal hostility, and it must be so patent and gross as to
amount to an evasion of positive duty enjoined or to act at all in contemplation of law. 50

By constitutional fiat and by the intrinsic nature of his office, the President, as head of State, is the
sole organ and authority in the external affairs of the country. In many ways, the President is the
chief architect of the nation’s foreign policy; his "dominance in the field of foreign relations is (then)
conceded." Wielding vast powers an influence, his conduct in the external affairs of the nation, as
51 

Jefferson describes, is "executive altogether." 52

As regards the power to enter into treaties or international agreements, the Constitution vests the
same in the President, subject only to the concurrence of at least two-thirds vote of all the members
of the Senate. In this light, the negotiation of the VFA and the subsequent ratification of the
agreement are exclusive acts which pertain solely to the President, in the lawful exercise of his vast
executive and diplomatic powers granted him no less than by the fundamental law itself. Into the
field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade
it. Consequently, the acts or judgment calls of the President involving the VFA-specifically the acts
53 

of ratification and entering into a treaty and those necessary or incidental to the exercise of such
principal acts - squarely fall within the sphere of his constitutional powers and thus, may not be
validly struck down, much less calibrated by this Court, in the absence of clear showing of grave
abuse of power or discretion.

It is the Court’s considered view that the President, in ratifying the VFA and in submitting the same
to the Senate for concurrence, acted within the confines and limits of the powers vested in him by
the Constitution. It is of no moment that the President, in the exercise of his wide latitude of
discretion and in the honest belief that the VFA falls within the ambit of Section 21, Article VII of the
Constitution, referred the VFA to the Senate for concurrence under the aforementioned provision.
Certainly, no abuse of discretion, much less a grave, patent and whimsical abuse of judgment, may
be imputed to the President in his act of ratifying the VFA and referring the same to the Senate for
the purpose of complying with the concurrence requirement embodied in the fundamental law. In
doing so, the President merely performed a constitutional task and exercised a prerogative that
chiefly pertains to the functions of his office. Even if he erred in submitting the VFA to the Senate for
concurrence under the provisions of Section 21 of Article VII, instead of Section 25 of Article XVIII of
the Constitution, still, the President may not be faulted or scarred, much less be adjudged guilty of
committing an abuse of discretion in some patent, gross, and capricious manner.

For while it is conceded that Article VIII, Section 1, of the Constitution has broadened the scope of
judicial inquiry into areas normally left to the political departments to decide, such as those relating
to national security, it has not altogether done away with political questions such as those which
arise in the field of foreign relations. The High Tribunal’s function, as sanctioned by Article VIII,
54 

Section 1, "is merely (to) check whether or not the governmental branch or agency has gone beyond
the constitutional limits of its jurisdiction, not that it erred or has a different view. In the absence of a
showing… (of) grave abuse of discretion amounting to lack of jurisdiction, there is no occasion for
the Court to exercise its corrective power…It has no power to look into what it thinks is apparent
error."55

As to the power to concur with treaties, the constitution lodges the same with the Senate
alone.  Thus, once the Senate performs that power, or exercises its prerogative within the
1âwphi1
56 

boundaries prescribed by the Constitution, the concurrence cannot, in like manner, be viewed to
constitute an abuse of power, much less grave abuse thereof. Corollarily, the Senate, in the exercise
of its discretion and acting within the limits of such power, may not be similarly faulted for having
simply performed a task conferred and sanctioned by no less than the fundamental law.

For the role of the Senate in relation to treaties is essentially legislative in character; the Senate, as
57 

an independent body possessed of its own erudite mind, has the prerogative to either accept or
reject the proposed agreement, and whatever action it takes in the exercise of its wide latitude of
discretion, pertains to the wisdom rather than the legality of the act. In this sense, the Senate
partakes a principal, yet delicate, role in keeping the principles of separation of powers and
of checks and balances alive and vigilantly ensures that these cherished rudiments remain true to
their form in a democratic government such as ours. The Constitution thus animates, through this
treaty-concurring power of the Senate, a healthy system of checks and balances indispensable
toward our nation’s pursuit of political maturity and growth. True enough, rudimentary is the principle
that matters pertaining to the wisdom of a legislative act are beyond the ambit and province of the
courts to inquire.

In fine, absent any clear showing of grave abuse of discretion on the part of respondents, this Court-
as the final arbiter of legal controversies and staunch sentinel of the rights of the people - is then
without power to conduct an incursion and meddle with such affairs purely executive and legislative
in character and nature. For the Constitution no less, maps out the distinct boundaries and limits the
metes and bounds within which each of the three political branches of government may exercise the
powers exclusively and essentially conferred to it by law.

WHEREFORE, in light of the foregoing disquisitions, the instant petitions are hereby DISMISSED.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Kapunan, Quisumbing, Purisima, Pardo, Gonzaga-Reyes, Ynares-
Santiago, and De Leon, Jr., JJ., concur.
Melo, and Vitug, JJ., join the dissent of J. Puno.
Puno , J., see dissenting opinion.
Mendoza, J., in the result.
Panganiban, J., no part due to close personal and former professional relations with a petitioner,
Sen. J.R. Salonga.